MUNIB AKHTAR, J.--- The appellants in these two appeals, as well as the contesting respondent, are all candidates in the forthcoming general elections to the Provincial Assembly seat for PS-57, Badin-I. The nomination papers of all three were accepted by the Returning Officer but the appellants, being aggrieved by this decision in relation to the contesting respondent, preferred these appeals before the Tribunal. After hearing learned counsel for the appellants on 17-4-2013 we concluded that no interference with the order of the Returning Officer was called for. The appeals were accordingly dismissed by means of a short order, for the following reasons.
2. The submissions made by learned counsel for the appellants can be regarded as falling in two categories. The first is where it was submitted that the contesting respondent had submitted fake degrees (being a matriculation certificate and a graduation degree) in order to be elected to public office. The first instance was in 2001, on which Mr. Anwar Mansoor Khan focused attention. It was contended that in relation to the local bodies' elections held in that year, the contesting respondent submitted a matriculation certificate in order to contest the election for Zilla Nazim, which was declared to be fake and bogus by the concerned Returning Officer. The latter held that the contesting respondent was not a matriculate. An appeal preferred by the contesting respondent against this decision to the appellate tribunal constituted under the relevant law was subsequently withdrawn by him. Learned counsel further submitted that the contesting respondent also filed a fake and bogus degree of graduation in the general elections of 2002. He also referred to the subsequent litigation history in this regard. Learned counsel submitted that all of this brought the contesting respondent within the bar created by paragraph (f) of clause (1) of Article 62 of the Constitution. Now, Articles 62 and 63 were substituted in their entirety by the 18th Amendment to the Constitution in 2010, and it is obviously the provision as so substituted that applies in respect of the present general elections. This provision is as follows (emphasis supplied): "(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--
(f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; ..."
' The words emphasized are new, having been added by the 18th Amendment.
3. We invited Mr. Anwar Mansoor Khan to assist us on the applicability of the foregoing provision since it appeared to us that the newly-added words had changed the complexion of Article 62(1)
(f). This was so because previously the Returning Officer could himself, by conducting a summary inquiry under section 14(3) of the Representation of the People Act, 1976 ("1976 Act") conclude whether or not a candidate before him was sagacious, righteous etc. However, after the change brought about by the 18th Amendment, it was no longer open for him to do so. Unless there was a declaration to this effect by a court of law, the Returning Officer had to proceed on the basis that the candidate was sagacious, righteous etc. In fact, Article 62(1)(f) has been considered by us in another election matter, being Election Appeal 59 of 2013 which the detailed reasons were given on 16-4-2013). We have there observed as follows:--- "4. In our view, there are three aspects of the substituted Article 62(1)(f) that require consideration for present purposes. First is of course the effect of the newly-added words. Now, section 14(3) of the 1976 Act enables the Returning Officer to conduct such summary inquiry of the nomination papers of a candidate as he thinks fit and reject them in case he is satisfied, inter alia, that the candidate is not qualified to be elected as a member. Prior to the change brought about in Article 62(1)(f). Returning Officer could therefore conclude on the basis of his summary inquiry, or an objection taken in this regard by a person entitled to do so, that the candidate did not meet the requirements of this provision (e.g., was not honest or ameen) and reject his nomination. The newly-added words however, have changed the complexion of Article 62(1)(f). It is now no longer open to the Returning Officer to himself reach the conclusion that the candidate is not sagacious, righteous, etc. He can come to such a conclusion only if there is a declaration to this effect by a court of law. Put differently, the effect of the newly-added words necessarily is that unless a court of law makes a declaration to the contrary, the Returning Officer must proceed on the basis that the candidate is sagacious, righteous, etc. To hold otherwise would be to render the newly-added words otiose and a nullity. It would be as though no change at all has been brought about in Article 62(1)(f), which is patently not the case.
7. The third aspect of Article 62(1)(1) that requires consideration is the proper interpretation and application of the newly-added words, "there being no declaration to the contrary by a court of law". Two points require attention. Firstly, it is possible to understand these words to mean that the finding by the court of law must specifically declare the candidate to be other than sagacious, righteous, etc. This interpretation would have to restrictive an effect on the application of Article 62(1)(f). In our view, the proper interpretation of the newly-added words would be that they include a declaration (i,e, a finding) by a court of law that necessarily (and we emphasize this word) leads to the conclusion that the person is other than sagacious, righteous, etc. Secondly, the declaration must be made in circumstances that are relevant for purposes of Article 62(1)(1), i,e, can reasonably be regarded as relatable to a person's suitability for public office. In other words, not every declaration by a court of law may, even if formally relatable to anyone of the matters therein specified, be of relevance for purposes of Article 62(1)(1). The provisions of Articles 62 and 63 must be given a contextual meaning and effect, and the context is provided by the needs of public office."
It appeared to us, prima facie, that there was no declaration to the contrary by a court of law in relation to the Contesting Respondent in the present case, and hence the bar in Article 62(1)(f) could not be made applicable to him.
4. Mr. Anwar Mansoor Khan relied on a decision of the Lahore High Court reported as Muhammad Jamil v. Aamir Yar and others PLD 2010 Lahore 583, and in particular referred to paragraph 23 of the judgment (pg. 603), which is as follows (internal citations omitted): "23. The said Article provides qualification for membership to the National Assembly. Article 62(1)(f), post 18th Amendment means that a candidate will be considered to be sagacious, righteous, non- profligate, honest and ameen unless there is a declaration to the contrary by a court of law. "Court of law" can be any court or tribunal which decides a lis or the rights of the parties. Court is defined as "a governmental body consisting of one or more Judges who sit to adjudicate disputes and administer justice". "Court of law" means "Broadly, any judicial tribunal that administers the laws of a State or nation." This Court is also a "Court of law" for the purposes of Article 62(1)(t) of the Constitution and can therefore issue a declaration whether respondent No,1 is sagacious, righteous, non-profligate, honest and ameen." (Emphasis in original)
' Learned counsel further submitted, relying on three other reported cases, that a tribunal such as the one presently constituted and comprising of us (i,e,, an Election Tribunal under section 14(5) of the 1976 Act) was a "court of law", as held by the Lahore High Court. His case therefore was that we had the jurisdiction to make the necessary declaration for purposes of Article 62(1)(f) and hence could (and in the circumstances of the case ought to) declare the contesting respondent to be a person who was not righteous, ameen, etc. Within the meaning thereof.
5. We have carefully considered the decision of the Lahore High Court and the observations made in paragraph 23. (We note that the cited decision appears to be the only reported case so far in relation to the Article 62(1)(t) after the 18th Amendment). -Insofar as the second sentence of paragraph 23 is concerned, we respectfully note that it accords with what we have ourselves said in Election Appeal 59 of 2013 (see above). However, insofar as the other observations are concerned (at least as submitted by learned counsel), we are with the utmost respect unable to reach the same conclusion that seems to have found favour with the High Court. The facts of the case, as presently relevant, may be briefly stated. The case arose out of a bye-election for a National Assembly seat. The nomination papers of the respondent therein were accepted by the concerned Returning Officer, and an appeal was preferred against such acceptance to the Election Tribunal constituted under section 14(5) of the 1976 Act. The ground was that the respondent had submitted a fake and bogus degree. That appeal was rejected and it was the petition filed under Article 199 of the Constitution against that rejection that was decided by the cited judgment. The Lahore High Court, in exercise of its writ jurisdiction under Article 199, allowed the petition. The necessary declaration, that the respondent before it was not righteous, honest or ameen, was made by the High Court and his nomination papers were rejected.
6. Having considered the matter, in our respectful view, an Election Tribunal such as ourselves, constituted and exercising jurisdiction under section 14(5) of the 1976 Act is not a "court of law" within the meaning of Article 62(1)(f). We come to this conclusion for the following reasons. Firstly, it is an accepted position that a petition under Article 199 of the Constitution can lie against a decision of an Election Tribunal. (That of course, is how the matter ended up before the Lahore High Court). However, this is possible only if we are not sitting as a court of law. The reason is that if we were sitting as a court of law that Court can only be the High Court itself, and as clause (6) of Article 199 makes clear, no writ, order or direction of any sort can be issued under Article 199 against or to a High Court. It is precisely because we are only a statutory Tribunal exercising a specified jurisdiction that a petition is maintainable under Article 199. With utmost respect therefore, our position cannot be as concluded by the Lahore High Court. Secondly, we exercise only an appellate jurisdiction and that too of a specific and limited nature. Since we are the appellate forum against a decision of the. Returning Officer accepting or rejecting nomination papers, our jurisdiction is co-extensive with his. (We leave aside for the time being the matter of section 14(5A), which is taken up g below). Now, it is quite properly accepted that a Returning Officer can no longer make a declaration under Article 62(1)(t) since he most certainly is not a court of law. With respect, we cannot accept that in creating the Tribunal to exercise appellate jurisdiction against his decision, the 1976 Act has conferred a jurisdiction that is greater or more extensive than his. It is well-established that a court of first appeal has the same jurisdiction, ranging over the entire subject matter, as that of the forum below. However, it does not appear to be the case that the first Appellate forum has (or can be regarded having) a jurisdiction broader or greater than that of the forum below. Indeed, as is well-known, as a matter moves along the judicial hierarchy, the jurisdiction becomes narrower and not broader. For example, a court exercising second appellate jurisdiction can only entertain questions of law and so on. In our respectful view therefore, the conclusion that section 14(5), whereby this Tribunal is created to exercise only an appellate D jurisdiction, must be regarded as having conferred a jurisdiction vastly greater than that of the Returning Officer does not appear to be tenable.
7. Thirdly, we note that section 14 imposes a time limit on our jurisdiction inasmuch as subsection
(6) thereof expressly provides that an appeal before the Election Tribunal shall be deemed to have been E rejected if it is not disposed off within the stipulated period. In our view, this is hardly consistent with the status of this Tribunal as a court of law and tends to negate any such conclusion. Finally, with the utmost respect, when paragraph 23 of the cited decision is examined minutely, it appears to have certain implications that we cannot, respectfully, agree with. As is well- known, the High Court when exercising jurisdiction under Article 199 can make a declaration that an authority exercising functions in connection with the affairs of the Federation, etc. Has not acted in accordance with law and can therefore (e.g.) itself make the necessary declaration to bring the matter in conformity with law. Now, as noted above, in the cited decision the Lahore High Court concluded that the respondent before it was hit by the bar contained in Article 62(1)(f) and allowed the petition, rejecting his nomination papers. In our respectful view, what this necessarily means is that the High Court found as a matter of law that the Election Tribunal had erred in dismissing the appeal before it under section 14(5). In other words, it ought to have allowed the appeal. But, in our respectful view, one consequence that would seem to flow from this is that the Returning Officer ought to have rejected the nomination papers of the respondent by reason of the bar created by the Article 62(1)(f). Otherwise, no question would arise of the Tribunal having erred in law by failing to allow the appeal. However, as noted above, the Returning Officer no longer has any jurisdiction to hold that the bar in Article 62(1)(t) applies to a candidate. Thus, with the utmost respect, in allowing the petition, the High Court appears to have reached a conclusion the implication of which seems to be that the Returning Officer was entitled to do something that he patently cannot now do. We may also note that in the last sentence of paragraph 23, the High Court observed that "
[this Court is also a 'Court of law' ....". By "this Court", the High Court clearly referred to itself and there can obviously be no cavil with a High Court being a court of law. We however, do not sit as a High Court, but only as an Election Tribunal under section 14(5). Furthermore, while a High Court can, in an appropriate petition under Article 199 record a finding that may necessarily amount to a declaration that a candidate is not sagacious, righteous, etc., it cannot, in our respectful view, do so in one sort of petition, namely, a petition that challenges an order of an Election Tribunal under section 14(5). This is so because of the implications that would follow from such a declaration being made in such a petition, which point has just been explained. With the utmost respect, this crucial distinction was not brought to the attention of the Lahore High Court.
8. For all of the foregoing reasons therefore, and with the utmost respect to the cited decision, an Election Tribunal constituted and exercising jurisdiction under and for the purposes of section 14(5) is not a "court of law" within the meaning of Article 62(1)(f).
9. Learned counsel also placed reliance on another point noted by the Lahore High Court, in paragraph 24 (pg. 603) with regard to section 42 of the Specific Relief Act, 1877. With the utmost respect, and for the reasons stated by us in the aforementioned Election Appeal 59 of 2013 (see para 7 thereof reproduced above), we are unable to agree with the view that found favor with the Lahore High Court. We only note this point at the request of learned counsel since he wished to keep it open should this matter go further in appropriate proceedings. In view of the foregoing position we conclude that the bar contained in Article 62(1)(f), if at all applicable to the Contesting Respondent, could not be invoked or determined in the present proceedings since there is no I declaration to the contrary by a court of law as the provision now mandates.
10. We now turn to the second category of submissions made by learned counsel for the appellants. These related to and emanated from the nomination form (i,e, papers) that had been filed by the contesting respondent. We may note, for reasons that will presently become clear, that the appellant in Election Appeal 94 of 2013, as is clear from paragraph 18 of the memo. Of Appeal, had raised only one objection before the Returning Officer, which was with regard to the question of the allegedly fake and bogus degrees. Learned counsel for the appellants drew attention to paragraph 14 of the nomination form as filed by the contesting respondent (herein after referred to as the "present nomination form"). This paragraph requires the candidate to give details, in respect of the relevant tax year, of his land holding during that year, the agricultural income earned and the total agricultural income tax paid. In the present nomination form, the contesting respondent has given these details in respect of four tax years, being 2008-09, 2009-10, 2010-11 and 2012-13.
Learned counsel for the appellants submitted that no details had been provided for the tax year 2011-12. Their case was that this was no accident, but was an intentional omission. In order to substantiate this point, Mr. Anwar Mansoor Khan relied upon the nomination paper filed by the contesting respondent in respect of a bye-election for the present constituency, which was held some time in 2012 (hereinafter referred to as the "previous nomination form"). This was filed before us along with the appellant's rejoinder. The previous nomination form was drawn up to 30-6-2011. It showed the contesting respondent as holding 113 acres of agricultural land. A certain consolidated amount was shown therein as having been paid by way of agricultural income tax, drainage cess and other such dues. Learned counsel submitted that the omission of the tax year 2011-12 in paragraph 14 of the present nomination form must be regarded as substantial and material in view of what had been said in respect of this year in the previous nomination form. There was a clear and material inconsistency, which could not be explained. It was in order to hide this inconsistency that the contesting respondent had deliberately omitted all reference to the tax year 2011-12 in paragraph 14 of the present nomination form.
11. In order to appreciate the foregoing submission and the, issues thereby raised, reference will have to be made to subsections (2), (3) and (5A) of section 14 of the 1976 Act. Insofar as presently relevant, they provide as follows:--- "(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in subsection (1), conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a member; ... Provided that--
(b) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith ....
(5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under subsection (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers."
12. As noted above, it is clear from paragraph 18 of the memo of Appeal in Election Appeal 94 of 2013 that this appellant had not taken any such ground as noted in para 11 above before the Returning Officer. The importance of the failure to do so lies in that in terms of subsection (2), the Returning Officer is bound to decide ("shall") any objection raised before him by, inter alia, a candidate. However, in terms of subsection (3) he has discretion since the word "may" is used therein. Of course, any discretionary power must be exercised in accordance with law and on the basis of well-established principles, but it cannot be forgotten that the power is discretionary. In other words, if the discretion has been properly exercised in accordance with law, then such exercise ought to be respected. Now, in the present case, the alleged material omission or concealment, as per the appellants' case noted in para 11 above, could only come to light by an examination and comparison of both the present and the previous nomination forms. However, since no objection in this regard was at all taken, it is obvious (and indeed was quite properly and fairly conceded by learned counsel) that the previous nomination form was not placed before the Returning Officer. Since it was not so placed, he could not obviously have carried out any comparative examination of the previous and the present nomination forms to come to the conclusion now being urged before us by learned counsel. Prima facie it could not therefore be said that he had not properly exercised his discretionary power under subsection (3). We invited Mr. Anwar Mansoor Khan to assist us on this aspect, and learned counsel gave two answers. Firstly, he relied on subsection (5A) to contend that the necessary information could be, and had now been, laid directly before the Election Tribunal itself and that we were therefore competent to decide the issue. Since subsection (5-A) contains certain specific grounds on which alone the Election Tribunal has the jurisdiction to reject the nomination papers in terms thereof, we asked Mr. Anwar Mansoor Khan to specifically identify the grounds being relied upon by him. Learned counsel referred to the ground of a default in the payment of tax, and the ground of the candidate being disqualified from being elected as a member of the Assembly.
14. Taking up the second ground first, we are, with respect, unable to agree that the contesting respondent stood disqualified on account of the failure to mention the tax year 2011-12 in paragraph 14 of the present nomination form. The reason is that it is Articles 62 and 63 of the Constitution that (respectively) lay down certain qualifications and disqualifications for candidates. A nomination form filed by candidates is in the format as prescribed by the Election Commission in the exercise of its statutory powers under the 1976 Act. A candidate who is hit by any of the bars contained in Article 63 is disqualified from contesting the elections. A candidate who does not file a proper nomination form is prevented from contesting the elections. In both cases, the result is the same, namely that the candidate cannot contest the election. However, the legal route by which such a result is obtained is fundamentally different in the two cases. In the first case, the result comes about as a direct consequence of constitutional provisions relating to disqualifications. In the second, it is merely a failure to comply with a certain statutory requirement that prevents the candidate from contesting the election. In our view, a constitutional disqualification is not, and cannot be, the same thing as a bar arising out of a failure to fulfil a statutory requirement. In other words, a candidate being constitutionally disqualified from contesting elections is not the same thing as the candidate being statutorily prevented from doing so. The specific word used in subsection (5A) is "disqualification". This word must be read contextually. It has a certain constitutional meaning and significance that is well-understood. Even in subsection (5A) itself, it is preceded by the word "other", and the grounds specifically listed in the subsection all relate to constitutional disqualifications (being paragraphs (n) and (o) of Article 63(1)). In our view it is clear that as used in the subsection, this word does not relate to a situation whereby the candidate is prevented from contesting elections only for statutory reasons. Since the objection presently under consideration is relatable only to this and not to any constitutional provision, the reliance placed on subsection (5A). On the basis of "disqualification" is, with respect misconceived.
15. As regards the other ground taken with regard to this subsection, namely the submission that there has been a default in payment of agricultural income tax for the missing tax year, it would be entirely conjectural to reach such a conclusion simply because the year has been omitted from paragraph 14 of the present nomination form. In our view, therefore, subsection (5A) has no application in the facts and circumstances of the present case.
16. Learned counsel submitted, in addition to the grounds taken above, that the omission to give details with regard to the tax year 2011-12 was in and of itself a material and substantial omission, and the failure to mention this tax year was not covered by clause (ii) of the proviso to subsection
(3) (reproduced above). This provides that the -Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith. Having considered the present nomination form we are, with respect, unable to agree. As noted above, details of four tax years have been given and it could therefore be that the omission of the missing tax year was unintentional. Indeed, learned counsel for contesting respondent took the position that in fact no agricultural income tax was payable by him for that tax year on account of his being a flood-affectee and that therefore the omission (if it be such, which was denied) was both accidental and insubstantial. As to this learned counsel for the appellants submitted that even if no agricultural income tax was payable, nonetheless the details of the land holding, etc. Ought to have been given for the missing tax year. With respect, we are of the view that this objection is of a rather technical nature, which ought not to be entertained in present proceedings. Furthermore, as already noted above, the point was never taken before the Returning Officer. Learned counsel for the appellants submitted that it was the duty of the Returning Officer himself to carefully and closely scrutinize the nomination papers and call upon the candidate to either fill up or provide an adequate explanation for any omission or lacuna, failing which the nomination papers were to be rejected. In our view, in the present context even if the Returning Officer failed to note the omission now being relied upon, that ought not to be regarded as a failure by him to perform his statutory duty. We are fortified in this conclusion by the fact that the present appellants were represented before the Returning Officer. Since they were entitled to scrutinize the nomination form under subsection (1) of section 14, and have raised no objection that this right was denied to them, they could have picked up this point and brought it to the latter's attention. After all, they have done so after the acceptance of the nomination papers of the contesting respondent and before us by filing these appeals. It therefore appears to us that the so-called omission now being agitated by the appellants required a minute examination of the nomination papers and for that reason also cannot be regarded as being of such a substantial nature that the nomination papers ought to have been rejected.
17. In the context of the sort of summary inquiry that the Returning Officer ought to have carried out under subsection (3) of section 14, Mr. Anwar Mansoor Khan placed reliance on Neelofar Shah and another v. Of space (Pvt) Ltd. And others 2013 CLD 114, a decision of the. High Court of Sindh given by one of us sitting singly (Munib Akhtar, J). Learned counsel relied in particular on paragraphs 17 and 19 (at pp. 128- 129) of the cited decision. The observations relied upon were made in the context of proceedings under section 290 of the Companies Ordinance, 1984 and in respect of the jurisdiction conferred by that statute. In our view, the context in which those observations were made is clearly different from that as presently relevant and therefore, with respect, the passages being relied upon provide no assistance to learned counsel for the appellants.
18. Mr. Naeem Iqbal, learned counsel for the appellant in Election Appeal 155 of 2013, adopted the submissions made by Mr. Anwar Mansoor Khan and strongly contended that the nomination papers of the contesting respondent ought to have been rejected. We have already considered these submissions in the paras above and there is no need to re-examine the same.
19. By reason of the above, we had concluded that the impugned order of acceptance did not call for any interference, and had dismissed the Appeals. The foregoing are our reasons for having done so.